6.180 - Searches-General

Effective Date: 01/01/2015

POL-6.180

Searches and seizures generally must be made pursuant to a warrant. There are exceptions when searches and seizures may be made without a warrant. The officer bears the burden of documenting that an exception to the warrant requirement applies.

- Officers electing to search by consent shall have the consenting person sign a Consent to Search form (form 9.54).

- If the Consent to Search form is not available, Officers may also document the consent using another department authorized recording device, such as in-car video.

- The validity of the consent depends on consent being given voluntarily. Consideration of the intelligence and education of the person are scrutinized by the court, as are physical and mental coercion, exploitation and the authority of the person to give consent.

- Third party consents are valid under certain conditions.

- Consent is valid if the third person has equal authority over the business or residence and it can be concluded the absent person assumed the risk the cohabitant (roommate) might permit a search.

- Consent to search is not allowed if one cohabitant (roommate) or business partner objects to the consent, even if the other person gives permission. Consent must be given by both people, if present.

- Parents may consent to search a child’s living area if the parents have routine access to the area (the child is not paying rent).

- Landlords cannot give consent to search if a lease or rental agreement is still valid.

b. Exigent Circumstances

- Police may conduct an immediate, warrantless search or seizure under emergency conditions, if there is probable cause to believe that delay in getting a warrant would result in the loss of evidence, escape of the suspect, or harm to police or public.

- Officers are allowed to enter a home when the suspect retreats into the home or private area and there is reasonable fear of escape, destruction of evidence, or injury to police or public.

- Criteria examined by the court:

- Was the offense serious or one of violence?

- Was the suspect armed?

- Was the probable cause strong enough to believe the suspect committed the crime?

- Was there strong probable cause to believe the person was on the premises?

- Did the police identify themselves and give the suspect a chance to surrender prior to entry?

- Was there an ongoing investigation or decision to arrest prior to the suspect fleeing into the premises?

- Exigent circumstances also exist if the police are responding to a domestic violence call. Entry may be made if a person’s health, welfare, or safety is concerned.

c. Open View and Plain View Doctrines

- Open View

- The open view doctrine allows the police to see and possibly seize contraband. To apply open view, the officer must see the contraband or evidence from a vantage point available to the public. To seize the contraband or evidence, it must be located in an area open to the public and not protected by the Constitution.

- Police officers are not allowed to enter and seize contraband if the contraband is exposed to the public from a constitutionally protected place. For example: If officers see a marijuana plant growing in the window of a residence, they cannot enter the home, but have probable cause to seek a search warrant.

- Plain View

- The plain view doctrine allows the police to inadvertently discover contraband or evidence after making a lawful intrusion into a constitutionally protected area, such as a residence or a vehicle. The contraband or evidence must be immediately recognizable as such and be in plain view.

- The key to the plain view doctrine is being in the protected place with consent or on legitimate police business. Once the inadvertent discovery is made, officers have probable cause to seek a search warrant for a more thorough search.

d. Pat-Down Frisk

- The purpose and scope of the pat-down frisk is to discover weapons or other items which pose a danger to the officer or those nearby.

- In addition to the basis for the stop itself, the officer must have a sufficient basis to believe an individual is armed, and be able to articulate the belief that their safety or that of others was in danger. This may include, but is not limited to:

- Prior knowledge that the suspect carries a concealed weapon,

- Suspicious behavior, such as failure to comply with instructions to keep hands in sight,

- Observations, such as suspicious bulges, consistent with carrying a concealed weapon, or

- Prior knowledge that the suspect is a verified member of a gang known to carry weapons and their behavior warrants a Terry Stop.

- The frisk for weapons is strictly limited to what is necessary for the discovery of weapons which might be used to harm the officer or others nearby. Generally, the frisk must be limited to a pat-down of outer clothing.

e. Search Incident-to-Arrest / Custodial Search

- Search Incident-to-Arrest—Officers may, incident to a lawful arrest, search an arrestee’s person and the area within the arrestee’s immediate control.

- Vehicles - After a person is arrested out of a vehicle, officers do not have authority to search the passenger compartment and unlocked containers incident to arrest. One of the following must apply:

- Officers have consent to search,

- Exigent circumstances exist, or

- Officers are performing an inventory search pursuant to impoundment of the vehicle.

- Residence - When a person is arrested in a residence, officers may only search the immediate area where the arrest occurred. Officers may only search other areas of the residence if:

- They reasonably believe that officer safety is threatened,

- There is a reasonable chance the arrested person might escape or destroy evidence.

- Personal Items – Officers may only search personal items such as wallets, backpacks, or other bags if the subject had them in his or her actual and exclusive possession at or immediately preceding the time of his or her arrest.

- Cell phones - Absent another exception such as exigent circumstances, officers may not search digital information on a cell phone or other device without a warrant.

- Custodial Search

- Officers shall thoroughly search the persons of all arrestees who are taken into custody.

- This search shall be conducted as soon as possible after the arrest and before transporting the prisoner(s). Evidence of any crime which is discovered in the course of a valid custodial search may be used to support whatever subsequent charge is appropriate.

- Suspects will not be searched by officers of the opposite gender unless there is a reasonable likelihood that the suspect possesses a weapon or other object capable of causing injury or which could facilitate escape, or the officer believes that the suspect possesses objects which constitute evidence, which if not seized immediately could be destroyed, lost, or lose their value as evidence, and there is no officer of the same gender readily available to conduct the search.

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